Bombay HC rejects pleas by Deshmukh, Malik; says purity of electoral process significant, can’t accede permission to unqualified persons

A single-judge bench of Justice N J Jamadar on Thursday concluded hearing in pleas filed by the two leaders and reserved them for orders.

The Court said submission by applicants that the prohibition to vote does not apply to “restricted electoral college,” such as MLC polls “does not merit countenance.” Justice Jamadar said that “the concept of democracy transcends electoral democracy.” The judge observed: “Purity of electoral process and probity of the participants therein, are also of equal significance in strengthening the democratic principles. One of the objects of prohibition under the Act is stated to be arresting the criminalisation of politics. I am, therefore, not inclined to accede to the broad proposition that permitting the persons (who are otherwise not qualified to vote in the election) strengthens democracy.”

Senior advocate Amit Desai, representing Malik, argued that his client was not seeking release on bail but was merely seeking permission to be taken to cast his vote with an escort. He said Section 62 (5) of the Representation of the People Act does not prevent the High Court from exercising its discretion to pass an order to facilitate the process of voting for the applicant and such discretion is not taken away by any of the previous HC or Supreme Court judgments.

Senior advocate Vikram Chaudhari, representing Deshmukh, said, “It could have been an absolutely non-adversarial case. It could have been a consent order. Why is the enforcement agency jumping to oppose this plea?”

Additional Solicitor General (ASG) Anil Singh, representing the Enforcement Directorate (ED), opposed the plea and said that there is “clear embargo” on the right to vote for prisoners as per Representation of People Act and therefore, the question of vote on release cannot arise as applicants are not entitled to vote.
The bench said the applicants’ submission that the Court can remove the embargo is also “fraught with infirmities”, adding “there is no unfettered discretion, even in the Courts, to validate a course of action, which the law proscribes.”

However, Justice Jamdar stated that he is mindful of the fact that “in exceptional situations”, the court may be required to exercise “inherent powers” and it cannot be “completely denuded” of such an authority. The judge said that an illustrative example of such a situation could be where on the eve of an election, a number of members of the electoral college are put behind bars to deprive them of opportunity to vote to achieve a desired result.

“In the case at hand, the applicants have been in custody since long. No such motive of putting the Applicants behind the bar so as to prevent them from participating in the election process can be attributed, at least, at this length of time,” the bench held while rejecting the applications.